FCC Night Releases May Hurt Productivity, Regulatory Clarity
The FCC has released hundreds of official actions after business hours in recent years, with substantial but unknown costs to the agency’s constituents, according to a Communications Daily study and interviews with communications lawyers and executives. The practice isn’t employed at other federal agencies we surveyed. Items released after usual hours ranged from routine orders to approvals of multibillion-dollar deals. It’s one factor among many feeding executives’ uncertainty about how the agency will regulate them, and it can reduce productivity, said broadcast, cable and telecom lawyers. However, the FCC breaks no rules in frequently releasing items after 5 p.m. and occasionally even after midnight, and some lawyers we spoke to found the practice unobjectionable.
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Evening releases may cost the commission work hours if employees working nights later take comp time, said a veteran communications lawyer and former FCC worker. “For the FCC I think it makes a difference because of all the people who have to stay to get it out the door.” At companies, costs rise and productivity falls when lawyers stay at the office nights and weekends waiting for orders to come out and reading them, said communications attorneys. Employees laboring late over FCC releases may leave early on another day, said a telecom attorney. The phenomenon matters less to law firms, which bill for work regardless of when they do it, said that attorney and others.
Executives complain about what they call “11:59 p.m. specials,” an FCC staffer said. Evening releases seem symptomatic of an agency making decisions with little time to spare, making it harder for companies to know how coming rules will affect them, current and former FCC officials and industry lawyers said. A commission spokesman declined to comment on the releases.
“I've heard a lot from people in the industry, including clients, about the cost, and not just specific and human time costs,” said cable and telecom lawyer To-Quyen Truong. “But the big issue of business uncertainty -- the lack of predictability of process and outcomes -- is a greater preoccupation for everyone than specific issues like late issuance.” Other lawyers said late releases rarely affect their clients because companies usually have plenty of advance notice of rulemaking notices affecting them, and items sometimes are released at night so they're in place before financing and other deal-related deadlines.
The FCC released at least 189 items after business hours between Sept. 1, 2006, and Wednesday. Many of those documents appeared on the FCC website’s homepage and were sent to reporters. When items weren’t e-mailed to the media, FCC officials told us of the documents’ releases or we monitored their appearance on www.fcc.gov. FCC spokespeople decline to say at exactly what time items are released.
The FCC is more than seven months overdue in responding to Freedom of Information Act requests seeking information on its official Web posting practices (CD Jan 14 p10). It got an e-mail Tuesday from a lawyer for Warren Communications News, publisher of Communications Daily, asking that the agency provide by noon Thursday documents sought in the four FOIA requests. That deadline wasn’t met, said attorney Chad Bowman. The agency acknowledged in May that FOIA responses were due June 4, but never formally sought more time or notified us that it would miss the deadline.
Warren Communications News’ lawyer wrote the FCC because “we need this information to serve our readers,” said Publisher Paul Warren. Because the commission didn’t respond, “as the letter says, we will consider all available legal avenues,” he added, declining to be more specific. “We hope that the FCC will comply” with the FOIA requests, he said.
The commission had no “comprehensive” document available to address the requests, and the Act doesn’t require agencies to create new documents where they hadn’t previously existed, an agency spokesman said late Thursday. “That’s something that can be considered and if it can be created within [a] reasonable time it could be” completed, he added, saying the FCC is considering how to respond to the requests.
The FCC was sued in 2007 over a FOIA request by Georgetown University’s Institute for Public Representation. The agency didn’t respond fully to a 2006 request for all documents related to media ownership studies, and that response was several months late, said Angela Campbell, the institute’s director, and attorney Corie Wright. The group dropped the suit, filed in U.S. District Court in Washington, D.C., after the FCC in mid-2008 provided a list of documents that had been withheld, they said.
In 2008, the FCC released 99 items after the close of business. The average time was 6:35 p.m. ET for the 87 items whose exact time of release we could determine. Orders, the most frequent late-released document type, numbered 24, followed by news releases, public notices, statements from FCC members and other agency officials and Sunshine Notices. Late press releases or orders approving $53.4 billion worth of takeovers included Verizon Wireless’s buy of Alltel, the Sprint-Clearwire and Sirius-XM deals and transfer of a controlling stake in DirecTV. In 2007, the FCC released documents after 5 p.m. on takeovers valued at $45.8 billion: Alltel and Tribune going private and AT&T purchasing Dobson Communications.
Last year, documents on DTV were the most commonly late- released item, followed by Sunshine Notices. Announcements of agenda items at 11 monthly public commission meetings were e-mailed to the media after business hours. Three meetings were canceled less than 12 hours in advance. Industry attorneys said last-minute changes to meetings and late meeting starts often waste their time -- and that of their employers. “The Government in Sunshine Act came to mean that meetings actually started while the sun was still shining” joked Dan Brenner, senior vice president of the NCTA. “There’s a cost to people’s time and attention [of] having to wait hours for a meeting to start. Sometimes that’s the nature of the beast, but it seemed to happen a whole lot more over the last few years.”
Late Items Said More Frequent
The commission seems to have made public more items at night under Chairman Kevin Martin than his predecessors, said lawyers representing broadcast, cable and telecom clients and current and former FCC officials. Nighttime releases were seen under Michael Powell, chairman 2001-2005, but seemed to occur less frequently, they said. “It’s a little hard to say whether it’s due to the press of the commission’s business or perhaps Chairman Martin’s higher energy level than some of his predecessors” because he’s younger, said broadcast attorney Peter Tannenwald. “It’s been ramping up through each chairmanship… Why does it have to come out the night before instead of 10 the next morning? What is the drive to do that? That’s what I just don’t understand, and that is what causes the greatest burden for us.”
Officials in FCC bureaus saw late release of documents as a change from previous administrations, said a former staffer. That caused career employees to cancel vacations to finish items that could have been ready earlier if the chairman had required it, said a current commission official.
The FCC long has issued items after regular stock market trading in the U.S. closes at 4 p.m. ET, said a veteran communications lawyer. Before the commission began releasing items by posting them online, late decisions would be announced the next day, said broadcast attorney David Oxenford. “Part of it is because the FCC is getting better at getting information out,” he said. “I'd almost rather see it that night or first thing the next morning rather than waiting til one o'clock or whatever time the Daily Digest comes out.”
In 2007, the commission released 59 documents after about 5 p.m., with media ownership and localism the most common subject, followed by meeting and other agenda items. In late 2006, the commission issued 28 late items. Between then and now, 11 after-hours items dealt with forbearance, issues of which often have statutory deadlines, and four items in 2008 dealt with hurricanes and other emergencies. The FCC seems to have had no legal requirement mandating release of many other types of nighttime items after business hours, current and former commission officials and industry lawyers said.
Other federal agencies don’t routinely release items after business hours, said industry lawyers and spokespeople for those regulators. The SEC tries to issue items by 5:30 p.m., “but occasionally things come out after 5:30 or even on the weekend, if necessary,” said a spokesman. Such instances are “quite rare,” he added. The Federal Election Commission releases items after 5 p.m. less than once a month, on average, said a spokeswoman. It’s unlikely that the Federal Trade Commission has released anything lately after 5 p.m., said a spokesman. “We would never do something after 5:30 at night,” he added. “We'll typically push something to the next day to get the best press coverage possible.”